Citation Nr: 0818029
Decision Date: 06/02/08 Archive Date: 06/12/08
DOCKET NO. 07-17 001A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for a right eye condition.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1942 to September
1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an October 2005 decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Nashville, Tennessee.
For good cause shown, namely the veteran's advanced age, a
motion to advance this appeal on the Board's docket has been
granted under the authority of 38 U.S.C.A. § 7107(a) (West
2002) and 38 C.F.R. § 20.900(c) (2007).
FINDING OF FACT
There medical evidence does not show that the veteran has a
current right eye condition.
CONCLUSION OF LAW
A right eye condition was not incurred in or aggravated by
active military service. 38 U.S.C.A. §§ 1110, 1131, 5107
(West 2002); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran asserts that service connection is warranted for
a right eye condition as a result of exposure to "military
environmental factors" in service. Prior to service, he
went to a private physician to have a chalazion removed from
this right lower eyelid and there was no mention of any other
problems with his right eye. As such, he believes that he
developed right eye pterygium in service and has suffered
from the condition ever since.
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in line of duty, or for aggravation of a pre-existing injury
suffered or disease contracted in line of duty. 38 U.S.C.A.
§ 1110, 1131; 38 C.F.R. § 3.303. The law also provides that
service connection may be granted for any disease diagnosed
after discharge when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). In determining
whether service connection is warranted for a disability, VA
is responsible for determining whether the evidence supports
the claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against the claim, in which case the claim is
denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
Here, service medical records are unavailable for review. In
August 2005, the RO issued a Formal Finding on the
Unavailability of Service Medical Records after learning that
his records had most likely been destroyed in a 1973 fire at
the National Personnel Records Center in St. Louis, Missouri.
However, in September 2005 correspondence, the veteran stated
that he never received any treatment for right eye pterygium
in service or after service. Thus, there are no records
pertaining to his alleged condition. He did state that the
separation examination revealed a diagnosis of right eye
pterygium, but this is has not been verified. In
correspondence dated June 2007, his sister reported that the
veteran "did have a growth on his eyeball when he came home
from Indianapolis, Indiana."
There are also no post-service medical treatment records
available for review. In correspondence dated in August
2005, he indicated that the only treatment has been his self-
application of eye drops to soothe irritation. In light of
the foregoing, the Board but must deny this claim because the
there is no medical evidence indicating that the veteran has
a current diagnosis of right eye pterygium. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992); see also Gilpin v.
West, 155 F.3d 1353, 1355-56 (Fed. Cir. 1998).
In reaching this determination, the Board does not question
the sincerity of the veteran's conviction that he has a right
eye condition due to service, and particularly, as a
consequence of his reported in-service exposure to "military
environmental factors." The Board notes, however, that as
lay persons, the veteran and his sister are not competent to
establish a medical diagnosis or show a medical etiology
merely by his and her own assertions; such matters require
medical expertise. 38 C.F.R. § 3.159(a)(1) (competent
medical evidence means evidence provided by a person who is
qualified through education, training or experience to offer
medical diagnoses, statements or opinions); see also
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494-95 (1992). Because the
veteran is not professionally qualified to offer a diagnosis
or suggest a possible medical etiology, and since there is no
competent medical evidence showing that the veteran was ever
diagnosed as having right eye pterygium, the preponderance of
the medical evidence is against this claim and there is no
basis upon which to establish service connection.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a) (2007).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the claim
in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v.
Principi, 16 Vet. App. 183 (2002). This notice must be
provided prior to an initial unfavorable decision on a claim
by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication. To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law. See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the veteran in February 2004 that fully
addressed all four notice elements and was sent prior to the
initial RO decision in this matter. The letter informed him
of what evidence was required to substantiate the claim and
of his and VA's respective duties for obtaining evidence. He
was also asked to submit evidence and/or information in his
possession to the RO.
There is no allegation from the veteran that he has any
evidence in his possession that is needed for full and fair
adjudication of this claim. Under these circumstances, the
Board finds that the notification requirements of the VCAA
have been satisfied as to both timing and content.
With respect to the Dingess requirements, in March 2007, the
RO provided the veteran with notice of what type of
information and evidence was needed to establish a disability
rating, as well as notice of the type of evidence necessary
to establish an effective date. With that letter, the RO
effectively satisfied the remaining notice requirements with
respect to the issue on appeal.
Therefore, adequate notice was provided to the veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b).
Next, VA has a duty to assist the veteran in the development
of the claim. This duty includes assisting him in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the veteran. See Bernard v. Brown, 4
Vet. App. 384 (1993).
In this case, the RO attempted to obtain service medical
records, but it was determined that they were destroyed in a
1973 fire at the National Personnel Records Center in St.
Louis, Missouri. Further, the veteran submitted several
personal written statements and a statement from his sister.
However, he indicated that there were no records showing a
diagnosis of or treatment for a right eye condition.
Moreover, given the absence of in-service evidence of chronic
manifestations of the disorder on appeal, no evidence of a
current disorder, and no competent evidence of a nexus
between service and the veteran's claim, a remand for a VA
examination would unduly delay resolution.
Hence, no further notice or assistance to the veteran is
required to fulfill VA's duty to assist in the development of
the claim / claims. Smith v. Gober, 14 Vet. App. 227 (2000),
aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi,
15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16
Vet. App. 183 (2002).
ORDER
Service connection for a right condition is denied.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs